Thompson v Turner Hopkins - [2018] NZCA 197

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA204/2017
[2018] NZCA 197

BETWEEN	IAN ALLEN THOMPSON Appellant
AND	TURNER HOPKINS Respondent

Hearing:	20 February 2018 (further submissions received 5 March 2018)
Court:	Asher, Clifford and Williams JJ
Counsel:	W A McCartney for Appellant S A Grant for Respondent
Judgment:	18 June 2018 at 11 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe summary judgment in favour of the respondent is set aside.
C There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No

Introduction
Key facts
The pleaded cause of action — breach of statutory duty

The tort of breach of statutory duty
Certificates under the Act
The terms of the section
Sanctions and compensation provisions in the Act
To whom are ss 164 and 164A directed?
Conclusion

Mr Thompson’s further claim

Should this Court consider the proposed new cause of action?
The negligence claim

Further defences in support of summary judgment

Did the Building Contract clearly allow DDC to register the mortgages?
Can Turner Hopkins be liable?
Did Mr Thompson cause his own loss?
Conclusion

General conclusion
Result
Costs

[1]
[2]
[14]
[14]
[17]
[26]
[30]
[35]
[41]
[43]

[45]
[49]
[59]

[61]
[67]
[68]
[69]
[70]
[72]
[73]

Introduction

Sections 164 and 164A of the Land Transfer Act 1952 (the Act) set out the process of certification of instruments that are being registered. At issue in this appeal is whether those sections create a statutory duty: that is, does the giving of a false certificate found a private law, strict liability, cause of action. The law firm that gave the allegedly false certificate is the respondent, Turner Hopkins, who acted for a contractor repairing a leaky townhouse block in Auckland. The appellant and plaintiff in the proceedings is Ian Thompson, who was the owner of two townhouses and a member of the block’s Body Corporate. Associate Judge Doogue granted Turner Hopkins’ defendant summary judgment application, thereby bringing Mr Thompson’s claim against Turner Hopkins for breach of statutory duty to an end.[1] Importantly, as will become apparent later in this judgment, during the appeal Mr Thompson proposed a further cause of action against Turner Hopkins based on negligence.

Key facts

[1]Thompson v DD Construction Ltd [2017] NZHC 516.

The claim against Turner Hopkins was one of a number of causes of action brought against multiple defendants by Mr Thompson arising from repairs carried out to an eight-unit townhouse block in Grey Lynn. Mr Thompson was the owner of two of the unit titles. They proved to be leaky. DD Construction Ltd (DDC) was contracted by the Body Corporate to carry out the remedial work on a time and materials basis. As the work progressed there were disputes between the Body Corporate and Mr Thompson on the one side, and DDC on the other. The Body Corporate and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZCA 197
Decision Date: 18 June 2018 at 11 am

CaseChat Overview and Summary

Ian Allen Thompson appealed against the summary judgment in favour of Turner Hopkins, who acted for the contractor, DD Construction Ltd. The appeal was allowed and the judgment in favour of Turner Hopkins was set aside. Thompson argued that Turner Hopkins had given a false certification when it registered mortgages against his unit titles. Turner Hopkins argued that there was no statutory duty to certify correctly and therefore no private law cause of action. The Court of Appeal found that the purpose of the certification was to assure the Registrar that the instrument being registered was genuine and compliant with the requirements of the Land Transfer Act. The Court of Appeal found that the certificate was given to the Registrar to provide assurance to the Registrar that the instrument was genuine and compliant with the requirements of the Act. The Court of Appeal found that the Act was self-contained in relation to the consequences of incorrect certification, and a no-fault civil remedy should not be added to the remedies available. The Court of Appeal found that the new cause of action in negligence was not certain to fail. The Court of Appeal found that Turner Hopkins could be liable for any negligence by Mr Stirling as a partner. The Court of Appeal found that it was arguable that Mr Thompson caused his own loss by not paying the invoiced amounts. The Court of Appeal found that the appeal should not be dismissed on this basis. The Court of Appeal found that the appeal should not be dismissed on the basis that the Building Contract allowed registration of the mortgages as carried out by DDC and Mr Stirling, so it is not arguable that he did not have authority. The Court of Appeal found that the appeal should not be dismissed on the basis that the statutory provisions relating to certifications of authority to register documents bind solicitors and not firms, so Turner Hopkins cannot be liable. The Court of Appeal found that the appeal should not be dismissed on the basis that it was Mr Thompson’s actions in not paying the contractual amounts in accordance with the contractual process that gave rise to the registration of the mortgages, so that any losses do not flow from Turner Hopkins’ acts or omissions.

Orders